The ‘Civil’ Sections

Nearly four years in to writing this BLOG and I’ve never done a post explaining the main inpatient provisions under the Mental Health Act. I would argue that officers do need to have a sense of what they mean, because aspects of how these sections operate affect policing decisions that can be subsequently necessary – so I’ve decided to cover it. From understanding the point at which someone becomes ‘sectioned‘, all the way to understanding timescales that might apply to the re-detention of a patient who has absconded from care – all relate back to understanding various important sections of the Act.

The sections I am going to cover in this post are those contained in Part II of the Act, what sometimes are called the ‘civil’ sections of the Act (as opposed to the ‘criminal’ sections in Part III which are imposed within the operation of the criminal justice system).

MAIN ADMISSION PROVISIONS

There are two provisions officers need to know about as they are the ones that occur most frequently where patients are being ‘sectioned’ or are ‘AWOL’ –

  • Section 2 MHA – an Approved Mental Health Professional (AMHP) or a person’s Nearest Relative (NR) can apply for a person’s admission to hospital for assessment of a mental disorder where that application is supported by two medical recommendations from doctors. One of those doctors must be ‘section 12 approved’, which means they must have special experience in caring for patients with a mental disorder. Once in hospital, the patient may be detained there for up to twenty-eight days for assessment and any treatment thought necessary. This period of time in hospital cannot be extended or renewed; and patients have a right to appeal to a mental health tribunal to challenge their detention, if they wish to do so.
  • Section 3 MHA – an AMHP / NR can apply for admission for a patient’s treatment of a mental disorder. As with section 2, the applicant must have two medical recommendations, one from a ‘section 12’ doctor and for this particular section only, the doctors must be satisifed that the kind of clinical care that is required by the patient is available at the hospital. Detention under section 3 for treatment lasts initially for six months but it may be extended. The first extension lasts for a second six-month period and then for further periods of twelve months. As with section 3, patients have a right of appeal to a mental health review tribunal. A Nearest Relative can object to their relative’s admission under s3.

Depending on how interested you want to get, there can be some fairly fascinating amongst AMHPs as to which section should be selected as a mechanism to admit someone to hospital. My original understanding of these provisions led me to believe that patients were admitted under section 2 where they were not known to services or where they did not have a known diagnosis; section 3 was for known patients with a diagnosis. I thought this because that seemed to be how AMHPs’ decisions were taken when I worked as a custody sergeant. On one occasion, an AMHP wanted to make an application under section 3 for a young man arrested for a robbery. I remember feeling utterly confused when I was told that the application would not be happening because “his nearest relative has objected”. This young man was obviously very unwell indeed and I was simply astounded that an objection from a relative could prevent it going ahead.  This is a peculiar aspect of section 3 – the NR can object, whilst for other sections it is merely necessary for the AMHP to take NR’s views into consideration. This is just one of several reasons some AMHPs argue admission to hospital should most usually occur under s2, to which NRs cannot legally object. There are other reasons relating to timescales in which a tribunal can review the decisions, least restrictive practice principles, etc..

LESS FREQUENT PROVISIONS

There are two less-frequently occurring sections that will occasionally pop up: they are simple to understand and I’ve had queries on both of these recently, where the NHS have rung the police in connection with application of AWOLs –

  • Section 4 MHA – this section relates to an emergency application for admission where time to act is short. An AMHP / NR may apply to hospital on the basis of only one doctor’s medical recommendation and detention in hospital lasts for only 72hrs. The doctor should, ideally be a ‘section 12’ doctor, but it is not a strict requirement if none are available. There is no appeal against detention under s4 because within that period of time, it is required that a second doctor examine the patient and if a further medical recommendation is forthcoming, the patient is treated as if they were originally admitted to hospital under section 2.
  • Section 5 MHA – not everyone who is admitted to hospital is ‘sectioned’ under one of these first three sections. Many patients are admitted on a voluntary basis. Where a patient is already admitted voluntarily and they decide to leave, there are two holding powers under section 5, for doctors and nurses respectively, to hold a person in hospital pending a Mental Health Act assessment for their admission as a detained patient under either section 2 or section 3  and paragraph 16.20 of the Code of Practice tells NHS staff to use these powers in preferene to calling for officers to implement section 136, which in any event can’t be used on a hospital ward –

5(2) – Any doctor may hold someone who is already an inpatient for up to 72hrs under section 5(2) of the MHA. An important point for officers to understand here, is that the 5(2) takes effect at the point where the doctor’s written report is delivered to the hospital managers.  It does not take effect at the point where the Doctor decides to start writing a report, so a recent example I  was contacted about meant hospital security were quite correct to refuse to rely upon this provision where a nurse was telling them to do so. The doctor had not yet completed his report and any detention would

5(4) – A nurse of the prescribed class may detain a patient for up to 6hrs. During this time, a doctor’s holding power under s5(2) may then be applied if a full Mental Health Act assessment cannot be convened in time. A nurse of the prescribed class typically relates to nurses who are trained in mental health, learning disabilities or child / adolescent mental health. Many nurses on acute hospital wards will not be authorised to use this power but all nurses are able to ask any hospital doctor to authorise detention under section 5(2) and they may also rely upon the Mental Capacity Act, where it applies.

It’s important to note on section 5 that it cannot be used in A&E because members of the public in that part of the hospital are not inpatients – A&E is, in effect, a large and unusual outpatient clinic, legally speaking. Section 136 of the Act however absolutely can be used in A&E, notwithstanding arguments about it is a place to which the public have access (it is) and whether or not it is itself a place of safety (it can be)!

ABSENT WITHOUT LEAVE

All of these sections have different implications when patients are missing because of the timescales. In the Quick Guides section, you will find a full checklist for the timescales that apply to the re-detention of an absent patient, including the so-called ‘criminal sections’ under the Act –

  • 2 – up until 28 days after their original admission to hospital
  • 3 – up to six months after the date on which they become AWOL
  • 4 – up to 72hrs after their original admission to hospital
  • 5(2) – up to 72hrs after their original detention under this power
  • 5(4) – up to 6hrs after their original detention under this power.

It is a requirement of the Code of Practice to the MHA (paragraph 28.17) that police officers are told by medical or nursing staff the time limit for taking someone into custody. I’m sorry if this next point causes any upset to anyone, but it’s worth double-checking what you’re told against the timescales outlined: my own professional experience is that I’ve never, ever been told the correct answer in all the times I’ve asked for time limits to be explained. It may be easier for officers to ask the admission time / date (for s2 and s4) or the AWOL time / date (for ss3, 5(2) and 5(4) – work it out for yourself from there!

If an inpatient has become AWOL, the power to re-detain them within the timescales is section 18 of the Mental Health Act. There is no power to force entry to premises in order to do this, so where it is necessary, a warrant under s135(2) MHA must be obtained. Police officers can apply to Magistrates for such warrants, where necessary. The Code of Practice prefers that mental health professionals accompany officers whilst executing them.  If a person has been ‘sectioned’ under the Act and they abscond during conveyance before arrival at hospital, then the power to re-detain is section 138 MHA. Again: a warrant under s135(2) MHA must be sought, if entry is to be forced where s17 of PACE does not apply.

Don’t forget, if you need to look up this stuff from time to time, there are various links on this BLOG that can be easily stored on your SmartPhone homepage – just open the links one at a time and save them to a folder.  Job done!


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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3 thoughts on “The ‘Civil’ Sections

  1. Using a s2 to avoid an objecting Nearest Relative would be an unlawful use of S 2…. I doubt whether any AMHP would use avoiding the NR objection as a rationale for using a S2 instead of a S 3. They could not. Would be helpful if you could correct this in your advice to officers.

    1. The debate about whether AMHPs use s2 or s3 as a mechanism to initially admit patients to hospital is one I’ve seen discussed on a few forums over the years. I’m aware that some AMHPs take the view that s2 should be used in almost all circumstances and for more than one reason —

      Decisions to take that approach mean the question of an objecting NR (if there is one) does not bind the AMHP’s decision-making. I can’t be the only police officer in the country who has been asked by MH services to detain people for inordinate amounts of time, in circumstances of highly questionable legality, whilst these objections and county court deliberations have been played out. In such circumstances, it would have all been avoided if the AMHP had taken the approach some legal commentators (including JONES) suggest they should: to use s2 as the primary admission mechanism even where patients are well known. I’ll look again at the wording, above, but I’m trying to convey that whilst I’m aware AMHPs can’t start off down the route of section 3, encounter an objecting NR and then say, “Oh well, we’ll just use s2 instead” – I recall there is caselaw on that point – what they could is decide s2 is their primary route to efficient admission. Apart from this being very obviously a less restrictive practice (28 days and tribunal within 7; rather than 6mths and tribunal weeks down the line), it also means a compulsory admission cannot be blocked where it is very obviously urgently necessary to prevent very obvious consequences in serious cases.

      I’m not agreeing with one position or the other, but merely attempting to reflect that there is debate on it.

  2. There are clear grounds that need to be met before either a s.2 or 3 application is made all AMHP’s have been trained and should be aware of these; an AMHP would be acting against the principles of the CoP if they applied a s2 just to avoid a possible NR objection.

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